Readers are likely well aware that Fatou Bensouda became the ICC’s Chief Prosecutor earlier this year. Before becoming Prosecutor, Bensouda had previously served as the ICC’s Deputy Prosecutor under Luis Moreno-Ocampo. Now, however, it is time for the Office of the Prosecutor (OTP) under Bensouda to decide who will fill her shoes – and they’re big shoes to fill at that.

Today, International Criminal Court (ICC) Prosecutor Fatou Bensouda, in accordance with article 42 paragraph 4 of the Rome Statute, treaty founding the ICC, has submitted to the Assembly of States Parties the names of the three candidates she is nominating for the position of Deputy Prosecutor. The candidates were selected from a pool of 126 applicants. The Prosecutor’s nomination is a culmination of an extensive interview process conducted with assistance from other tribunals. The process, which started in May 2012, included an initial screening, written test, oral presentations, face-to-face interviews as well as interaction with Senior Managers and Trial Lawyers within the Office.

All nominees meet the requirements of article 42 paragraph 3 of the Statute. In providing the Assembly of States Parties with a list of three nominees, the Prosecutor expressed her satisfaction with the process of identifying the candidates and said that all interviewed candidates were of a very high quality. Taking into account her vision of the Office, she selected the candidates that possess the capabilities and qualities of an excellent Deputy Prosecutor.

Raija Toiviainen, State Prosecutor and since 1997 Head of the International Unit for Finland’s Prosecutor General. In 2009 Toivianen led Finland’s 1st universal jurisdiction prosecution for genocide. The Finnish court trial against François Bazaramba, a Rwandan who had sought asylum in Finland, was conducted not in Finland, but rather in Tanzania. The case ended with a conviction and life sentence, both affirmed on appeal. She’s a member of the Executive Committee of the International Association of Prosecutors and of the Bureau for a Council of Europe entity, the Consultative Council of European Prosecutors.

Paul Rutledge, an Australian with 30 years’ experience, working since 2010 as an advisor on management issues to the Public Prosecutor for Papua New Guinea and the Director of Public Prosecutions for the Solomon Islands. He’s also acted as the Solomon Islands’ Deputy Director of Public prosecutions. Before that, he served 8 years as the Deputy Director of Public Prosecutions for the state of Queensland in northeast Australia.

James K. Stewart, since 2007 General Counsel for the Crown Law Office-Criminal, at Canada’s Ministry of the Attorney General. Previously, Stewart served as: Senior Appeals Counsel and then Chief of the Appeals and Legal Advisory Division for the Office of the Prosecutor at the International Criminal Tribunal for Rwanda, where he led early cases like Akayesu. In additional, in 2 separate stints, as Chief of the Prosecutions Division, and as Chief of Prosecutions at the International Criminal Tribunal for the former Yugoslavia.

The ICC’s Assembly of States Parties will elect the next Deputy Prosecutor in an election in November.

Here are three quick thoughts on the election:

First, why only select one Deputy Prosecutor? Nothing says that the ICC should only have one. Indeed for three years before Serge Brammertz left to become Prosecutor of the International Criminal Tribunal for the Former Yugoslavia, the OTP had two Deputy Prosecutors – Brammertz and Bensouda. Here’s the thing: Brammertz was Deputy Prosecutor (Investigations) while Bensouda was Deputy Prosecutor (Prosecutions). While the ICC’s announcement of a short-list doesn’t clarify whether the post is for investigations or prosecutions but the official job posting qualified the position as Deputy Prosecutor (Prosecution). This would seem to suggest that we could see a reversion to the practice of having two Deputy Prosecutors. In this instance, the Deputy Prosecutor (Investigations) would presumably be elected at some point in the near future, perhaps as early as next year. It would be a wise move. With the ever-increasing case load at the ICC, it makes a ton of sense to have a separate Deputy Prosecutor for investigations and prosecutions. And, after all, there is strength in numbers.

(Photo: Reuters)

Second, will political factors be raised by those deciding who Bensouda’s side-kick will be? I continue to believe that, in the case of Bensouda’s election, political criteria mattered. According to the ICC, all of the candidates for Deputy Prosecutor are people of the highest integrity and moral character. Each clearly has a wealth of experience in international criminal justice and related fields. They are all also Caucasian, so there won’t be any wrangling over whether the “developing” world or Africa should be represented in the OTP. Moreover, all come from countries with a long-standing and strong commitment to the ICC. Perhaps the only real political consideration for the members of the ICC is whether it wants to continue the pattern of gender balance between the two highest posts in the OTP.

Finally, while the position of Deputy Prosecutor isn’t particularly “sexy” and it will receive no where near the interest or media attention of the Bensouda’s selection, experience has shown that the Deputy Prosecutor is absolutely vital to the health of the OTP. As was the case under Bensouda, the Deputy Prosecutor can be instrumental in keeping the OTP focused and, in some cases, afloat. No one knows the importance of a Deputy Prosecutor to the functioning of the OTP than Bensouda herself.

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About Mark Kersten

Mark is a researcher, consultant and teacher based in London. His research focuses on the nexus of international criminal justice and conflict resolution. Specifically, Mark's work examines the politics of the International Criminal Court and the effects of its interventions on peace, justice and conflict processes.

2 Responses to Taking Bensouda’s Reins: Who Will Take Over as the ICC Deputy Prosecutor?

I think you missed the most important “political consideration.” This shortlist makes a mockery – or rather perpetuates the existing state of affairs — of the ICC’s claim of having two working languages. Bensouda doesn’t speak a word of French, nor do most of the staff and judges. This situation, hard to justify under the Rome Statute or the Court’s internal rules, is even more troubling because of where the Court is currently working. Nearly half the Court’s situations countries continue to be French-speaking (DRC, CAR, Cote d’Ivoire), and yet the ICC continues to send people who barely have any proficiency in French to “work” in these places. I’ve always thought it’s pretty grotesque that Lubanga’s fair trial rights before the ICC are best guaranteed by a bunch of prosecutors and judges who can’t speak a word of French, when they clearly could and should do so.

If the Court were taking its rules, and its mission, seriously, it would REQUIRE new staff to be fully proficient in French. But, clearly, nothing will change under Bensouda, who is more than happy to surround herself with English-speakers and flout the ICC’s own rules. To be fair to Bensouda, the UN long ago abandoned any pretense it was taking its language parity obligations seriously. Ban ki Moon has even been labeled a Franco-phoney by the press.

But if you read his bio more carefully, the Canadian applicant, James Stewart, was born in Quebec and speaks French. Granted, it’s Canadian French, but at least he has actually practiced law in French.